There are two ways the state may prove a DUI. One is known as DUI “per se” if an individual takes the breath test and the result is a breath alcohol content (BAC) of .08 or above, that individual is deemed DUI per se. The per se DUI theory is important when there is no other evidence of impairment such as when the police set up a road block and are unable to testify to any erratic driving. The police will develop probable cause for a DUI arrest based upon an individual's appearance, the odor of alcohol, if any, on the individual's breath and the persons physical appearance. Along with results of the Field Sobriety Test, (FST's), if the individual agrees to perform them and does poorly. If the individual does not do poorly, or refuses to perform, the FST's, the results of the breath test is just about the only way the state can prove impairment.
The second way the state may prove DUI is when there is a refusal to take the breath test, or in conjunction with the results of a low BAC. The state will use the officer's testimony of the individual's driving, the officer's observations of the individual's appearance, testimony of the individual's performance on the FST's and the odor of alcohol on the individual's breath along with their manner of speech, etc.
When I have a Client that has a breath test result that is below a .08 or was slightly over and the Client doesn't want to try the case, I will send a letter to the assistant state attorney who is assigned explaining why the client deserves a reduction to reckless or careless driving. I include with the letter a retrograde extrapolation graft that, based on the start and stop time, the type and amount of alcohol and any meal, will calculate what the Client's BAC was at the time of the stop.
Depending on all the information provided to the state attorney's office, they may agree to a reduction of the DUI charge to a “wet” reckless driving, a plain reckless, a careless driving or they may not consider a reduction at all.
A wet reckless is a misdemeanor and means the Client will not suffer a DUI conviction but they will incur most of the DUI sanctions including, if this is a first time DUI, a six-month driver license suspension. The Client will be eligible for a limited driver license, so long as the DUI school is completed prior to applying. The advantage of a “wet” reckless driving is the consequence on a Client's car insurance. A reduction to reckless may save the Client from being dropped by their insurance company or may prevent their car insurance from going up. Further, if the Client was to be arrested a second time for suspicion of DUI and eventually convicted, the conviction would be a first, saving the Client from suffering possible mandatory jail time for a second DUI.
If the State agrees to a reduction to a “true” reckless driving the Client will not suffer any license suspension but will most likely have to complete the DUI school and attend a Mothers Against Drunk Driving (MADD) impact panel. The MADD impact panel is a learning experience for those who attend. Individuals who have been impacted by a drunk driver talk about the effects of losing a loved one or, if they were injured by a drunk driver, how those injuries affect their lives.
If the State determines a DUI case is very weak or has other issues that may make prosecution difficult a reduction to careless driving may be worked out. Careless driving is a civil traffic infraction which carries a civil fine.